In Today's The New Yorker (@newyorker), Jeffrey A. Frank (@jeffreyafrank) asks:
The article discuss the U.S. Constitution and reminds us that the 25th Amendment exists as a contingency plan in case a President becomes incapacitated or is unable to perform duties competently.
Jeffrey Frank cites Supreme Court Justice Felix Frankfurter, who believed the framers purposely ignored the issue because “almost any means created its own problems and that therefore the matter was to be left to the pressure of events whenever the contingency arose.”
Frankfurter wrote, “I need hardly add that there were no keener, more resourceful draftsmen than Hamilton and Madison,” so they must have “concluded to leave the matter in the undefined form in which it now stands.”
Alexander Hamilton clearly expressed this as his view in 1788. He believed our Constitution must be written in the most general of terms because of their permanency. Too much specificity would limit the scope of the document. Hamilton knew the Founders could not possibly anticipate how society might evolve over the ensuing centuries.
Just as humans should be receptive to and capable of change, the Constitution must similarly be both mutable and malleable, to wit, a living and breathing document that evolves in response to new information and the changing times.
Interpretation of the Constitution would be influenced by, and reflect the views and mores of each generation, necessitating amendments to more accurately address a transforming society's needs.
This is why our Constitution must be considered a living document.
With that, I challenge Jeffrey Frank's assertion that "the Electoral College is unlikely to be changed—at least not any time soon; the Founders made it difficult to tamper with their extraordinarily durable, imperfect document."
As we know, Congress has thought it fit to "tamper with" the Constitution; there are 27 Amendments to date. The first 10 were written in 1791 as our Bill of Rights, addended to the original document. As soon as the Founders drafted the Constitution, several states demanded greater constitutional protection for individual liberties, thus invoking specific prohibitions on governmental power.
In response, James Madison drafted The Bill of Rights.
Amendment 1: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Amendment 2: A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.
Amendment 3: No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.
Amendment 4: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Amendment 5: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Amendment 6: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
Amendment 7: In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.
Amendment 8: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Amendment 9: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Amendment 10: The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
Since then, the Constitution has been amended 17 more times.
1795 – Amendment 11: Makes states immune from suits from out-of-state citizens and foreigners not living within state borders; lays foundation for sovereign immunity.
1804 – Amendment 12: Revises presidential election procedures. (Changes to Electoral College.)
1865 – Amendment 13: Abolishes slavery and involuntary servitude, except as punishment for a crime.
*It took Congress over 70 years to free Blacks from slavery.
1868 – Amendment 14: Defines citizenship, contains Privileges or Immunities Clause, Due Process Clause, Equal Protection Clause, and deals with post-Civil War issues.
1870 – Amendment 15: Prohibits denial of right to vote based on race, color, or previous condition of servitude.
1913 – Amendment 16: Permits Congress to levy income tax without apportioning it among states or basing it on United States Census.
1913 – Amendment 17: Establishes direct election of United States Senators by popular vote.
*The 16th and 17th Amendments were both
passed by Congress for their own benefit
Notice that they are elected by popular vote!
*The 18th Amendment began a 14-year period of Prohibition,
imposing morality via legislation.
1920 – Amendment 19: Prohibits denial of right to vote based on sex.
*It took Congress over 120 years to give Women the right to vote.
1933 – Amendment 21: Repeals 18th Amendment, but makes it a federal offense to transport or import intoxicating liquors into US states and territories where such transport or importation is prohibited by laws of those states and territories.
*The 21st Amendment lifts ban on Alcohol/Liquor,
but imposes interstate regulations.
1951 – Amendment 22: Limits number of times a person can be elected president: a person cannot be elected president more than twice, and a person who served more than two years of term to which someone else was elected cannot be elected more than once.
*Interestingly, a Republican-controlled Congress passed
the 22nd Amendment to limit the terms of a President after FDR,
but have not imposed a limit to how many times they can be elected.
George Washington believed in limiting the terms of a President.
A friend urged him to come out of retirement in 1799 to run for a third term.
In light of the phenomena of multiple political parties, Washington responded:
"The line between Parties" had become "so clearly drawn"
that politicians "regard neither truth nor decency;
attacking every character without respect to persons
-- public or private -- who differ from themselves in Politics."
1961 – Amendment 23: Grants District of Columbia electors (the number of electors being equal to the least populous state) in Electoral College.
1964 – Amendment 24: Prohibits revocation of voting rights due to non-payment of a poll tax or any other tax.
1967 – Amendment 25: Addresses succession to Presidency and establishes procedures both for filling a vacancy in office of Vice President, as well as responding to Presidential disabilities.
*The 25th Amendment has been discussed of late as a possible option
for removing Donald Trump, due to his being viewed as having severe
psychological, emotional, intellectual, and behavioral disabilities.
The Amendment is an option when "the President is unable
to discharge the powers and duties of his office."
It was enacted in response to the assassination
of President John F. Kennedy.
1971 – Amendment 26: Prohibits denial of right of US citizens, eighteen years of age or older, to vote on account of age.
1992 – Amendment 27: Delays laws affecting Congressional salary from taking effect until after next election of representatives.
*The 27th Amendment was submitted for ratification in 1789.
But it took over 200 years, because
Congress didn't want a law that would
limit increasing their own salaries.
limit increasing their own salaries.
As you can see, the Constitution has been amended twice with respect to the Electoral College. In 1804, the 12th Amendment replaced the procedure provided in Article II, Section 1, Clause 3. Then in 1961, the 23rd Amendment gave the District of Columbia its own electors, effectively considering it a state for the purpose of voting.
Precedent has been set that the Constitution can be amended with respect to the Electoral College. As we learned in 2000 and 2016, it no longer accurately represents the wishes of the majority of voters. It no longer serves the best interests of the American people. It is no longer effective or fair given the distribution of our population.
Twenty-five years have passed since the last Constitutional Amendment. It is time for the Constitution to once again be amended. The Electoral College must be abolished at once via Constitutional Amendment.
While we are amending the Constitution, this additional Amendment is requested by "We the People" of these United States of America. Such Amendment shall mandate that all Presidential candidates:
While we are amending the Constitution, this additional Amendment is requested by "We the People" of these United States of America. Such Amendment shall mandate that all Presidential candidates:
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